Top 10 DUI Questions

The Ten Most Popular Questions Pertaining to a DUI, composed by Russell D. Bernstein, Esq.

Top 10 DUI Questions

1. Question: If I am stopped for a DUI, should I take the breath test or refuse the breath test?

Answer: This is a question that I am constantly asked, and the answer is likely to frustrate you. The answer is there are both pros and cons as to whether you take the breath test or refuse it. In the event that you take the breath test and you blow over the legal limit in Florida which is .08, there is a presumption of impairment that is established that you would have to overcome if your case proceeded to trial. That could be a fairly strong negative when it comes down to preparing your case for trial.

Also, if your breath results come back very high from the breathalyzer machine, you can potentially subject yourself to enhanced penalties.

However, if you do take the breath test and you blow below a .08, than you have put yourself in a position where it may be very difficult for the Office of the State Attorney to prove beyond a reasonable doubt that you were driving under the influence.

In addition, if you do take the breath test, you may potentially put yourself in a position to have your license suspended for a shorter amount of time than if you refused the breath test. Again, this can depend on the amount of times you have been charged in the past for a DUI and the amount of your blood alcohol content (BAC) at the time of the stop.

Of course, you must keep in mind that there are standard operating procedures that law enforcement must follow in order to make the results of your breath test admissible.

2. Question: If I blow under the legal limit of .08, can I still be arrested and charged with a DUI?

Answer: Yes. A police officer can arrest you for a DUI if he knows that you are in actual physical control and believes that your normal faculties are impaired to the extent that you should not be operating a motor vehicle. Normal faculties basically means the way you walk, talk and act in a “normal” type of situation. Your normal faculties are likely to be tested when the officer asks you to complete voluntary roadside sobriety exercises. These exercises have come under scrutiny and criticism, but are usually the measuring stick if you are to be arrested.

Some of these exercises include, but are not limited to, the walk and turn exercise, the one legged stand, the finger to nose exercise, the HGN test and others.

3. Question: I once received a DUI from another state besides Florida, so will the State Attorney’s Office know about this prior DUI and can it be held against me?

Answer: Yes. The State Attorney’s Office will likely have a printout of all of your past violations from anywhere in the Country, and if they are able to provide the proper certification from a prior charge, it can potentially be held against you.

4. Question: Doesn’t a police officer have to read me my rights before I submit to doing any roadside sobriety exercises?

Answer: No. A police officer does not have to read you your Miranda Warnings before asking you to perform roadside sobriety exercises. These exercises are for demonstration purposes and are not deemed to be testimonial. Therefore, the answer is no. However, if you were involved in an accident, there are potential legal issues when there is a DUI with an accident that may mandate law enforcement to read you your Miranda Warnings.

5. Question: How much alcohol can I consume before I go over the legal limit of .08?

Answer: It depends. A person can reach the blood alcohol content of .08 depending on how quickly their body compresses the alcohol, their body weight, what they drink, how fast they drink, etc.

6. Question: Am I entitled to a lawyer as soon as law enforcement stops me for a DUI?

Answer: While law enforcement does not have to provide you with an attorney as soon as you are stopped for a DUI, you can politely tell the Officer that you do not wish to speak and do not wish to perform any roadside sobriety exercises at this time. Based on this type of response, law enforcement will likely make physical observations about you, and can and likely will arrest you for a DUI based upon your physical appearance. You should always be polite and respectful to law enforcement.

7. Question: Is there going to be a videotape of my DUI?

Answer: Some law enforcement vehicles are equipped with a video camera in their police car to videotape your roadside sobriety exercises. Some vehicles are not equipped with a video camera. In addition, some times you are on video at the BAT (Blood Alcohol Testing) facility.

8. Question: Can I go to jail for being charged with a DUI?

Answer: Yes. After being arrested for a DUI, you will spend hours in a holding/jail facility. After you post your bond and the case proceeds to Court, there is always the possibility of serving jail time for committing the crime of DUI.

9. Question: Am I entitled to a trial by jury if I have been charged with a DUI?

Answer: Yes. In the event that you wish to have a jury trial for your DUI, the State Attorney’s Office will need to prove that you have committed every element of this offense beyond a reasonable doubt, which is the standard of proof in criminal cases.

10. Question: Can I be charged with a DUI if I was only doing drugs but did not consume any alcohol at all?

Answer: Yes. Florida State Statute 316.193 explains in detail that the charge of DUI pertains to both alcohol and drugs. Therefore, if you are under the influence of drugs and are in actual physical control of a vehicle, you can potentially be charged with a DUI.

Here at the LAW OFFICES OF RUSSELL D. BERNSTEIN, P.A., THE LEGAL HELPLINE-A PRIVATE LAW FIRM, we will be happy to personally provide answers to all of these questions and many, many more. Please feel free to contact the firm at your convenience.


Russell D. Bernstein, Esq.

Attorney at Law

Client Reviews

I had an accident on 3/29 and explained all the details to Attorney Russell D Bernstein and he was able to get me a very favorable outcome in court so I would definitely recommend him! Great Attorney!

- Gabriel

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